Kagan may get confirmed, but Thurgood Marshall can forget it

Oppo researchers digging into Elena Kagan's past didn't get the goods on the Supreme Court nominee -- but they did get the Thurgood.

As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.

"Justice Marshall's judicial philosophy," said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, "is not what I would consider to be mainstream." Kyl -- the lone member of the panel in shirtsleeves for the big event -- was ready for a scrap. Marshall "might be the epitome of a results-oriented judge," he said.

It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint -- literally. Marshall this spring was added to the Episcopal Church's list of "Holy Women and Holy Men," which the Episcopal Diocese of New York says "is akin to being granted sainthood."

With Kagan's confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.

Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a "well-known activist." Sen. Chuck Grassley (R-Iowa) said Marshall's legal view "does not comport with the proper role of a judge or judicial method." Sen. John Cornyn (R-Tex.) pronounced Marshall "a judicial activist" with a "judicial philosophy that concerns me."

As the Republicans marshaled their anti-Marshall forces, staffers circulated to reporters details of the late justice's offenses: "Justice Marshall endorsed 'judicial activism,' supported abortion rights, and believed the death penalty was unconstitutional."

The problem with this line of attack is that Marshall was already confirmed by the Senate -- in 1967. He died in 1993. In the audience Monday, his son, Thurgood "Goody" Marshall Jr., sat two rows behind the nominee and listened with amusement to the assaults on his father.

"I was a little surprised," said Goody Marshall. "He would've probably had the same reaction I did: It's time to talk about Elena."

But talking about Elena is boring. Her credentials and her lack of a paper trail make her confirmation a virtual certainty. Further aiding her has been the steady flow of distraction, from the gulf oil spill to the death Monday of Sen. Robert Byrd (D-W.Va.). Most lawmakers, before addressing themselves to Kagan, delivered brief Byrd eulogies; Sen. Scott Brown (R-Mass.), introducing Kagan to the panel, offered this illogical wish: "I'd like to express my heartfelt condolences to Senator Byrd and his family for the loss that they've suffered."

The lack of a coherent attack on the nominee became apparent when Cornyn began his opening statement with a quotation that he said he received in an e-mail: "Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war, and we're all the crew."